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DENNIS YERGER AND WORKMEN'S COMPENSATION APPEAL BOARD v. ROCKWELL INTERNATIONAL (11/15/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 15, 1976.

DENNIS YERGER AND WORKMEN'S COMPENSATION APPEAL BOARD
v.
ROCKWELL INTERNATIONAL, APPELLANT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dennis Yerger v. Rockwell International, No. A-70503.

COUNSEL

Richard A. Bausher, with him Stevens & Lee, for appellant.

Roland J. Artigues, with him James N. Diefenderfer, for appellees.

President Judge Bowman and Judges Crumlish, Jr. and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 27 Pa. Commw. Page 74]

Appellant appeals an order of the Workmen's Compensation Appeal Board (Board) vacating a referee's disallowance of claimant's petition for benefits and remanding "to give the claimant one more opportunity to clarify his evidence. . . ." We reverse.

Claimant's petition alleged that on June 21, 1973 he had suffered permanent loss of use of the little finger on his right hand through an injury in the course of his employment by appellant. After claimant had testified at a hearing on March 26, 1974, the

[ 27 Pa. Commw. Page 75]

    matter was continued to allow him to present medical testimony. The second hearing was held on November 15, 1974. The physician who treated claimant immediately after the accident and at least once thereafter until November 16, 1973 testified that the total functional loss of use of the finger was 5 per cent and that claimant had suffered neither total nor one-half permanent loss of use "for all practical intents and purposes." This testimony remained unchanged even after the physician was asked on cross-examination by claimant's counsel to look at the finger again. A physician who examined the claimant on June 3, 1974, testified that the claimant had suffered seventy-five per cent permanent physical impairment of the finger. Claimant then amended his petition to allege loss of use of one-half of the finger. Upon disallowance of the petition claimant appealed to the Board, which "viewed the Claimant's injured finger [and] informally discussed the matter with counsel"*fn1 before ordering remand.

[ 27 Pa. Commw. Page 76]

We have already decided that the intent of The Pennsylvania Workmen's Compensation Act*fn2 was "to accord finality to a referee's determination and to establish the Board as merely a body of appellate review." Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 356, 336 A.2d 440, 443 (1975). Consistent therewith, the Board's power to remand is limited to only those cases "where the referee's findings are not supported by competent evidence or where the referee has failed to make a finding on a crucial issue necessary for the proper application of the law." Workmen's Compensation Appeal Board v. E-C Apparatus Page 76} Corp., 20 Pa. Commonwealth Ct. 128, 130, 339 A.2d 899, 900 (1975). Neither condition is met here.

Appellee claims that the remand order must be considered interlocutory and therefore unappealable. That is the general rule; however, where, as here, a remand order is clearly erroneous, it should be reversed. E.g. Riley Stoker Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 533, 308 A.2d 205 (1973).

Accordingly, we will enter the following

Order

Now, November 15, 1976, the order of the Workmen's Compensation Appeal Board, No. A-70503, dated December 5, 1975, is hereby reversed and the appeal of Rockwell International sustained.

Disposition

Reversed and remanded.


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